United States District Court, W.D. North Carolina, Charlotte Division
D. Whitney, Chief United States District Judge
MATTER is before the Court on Defendant's “Response
to Government's Motion for Continuing Writ of
Garnishment” (Doc. No. 174), in which Defendant
requests this Court dismiss the Government's request for
a Writ of Continuing Garnishment and allow Defendant to
resume making $50 monthly restitution payments.
November 3, 2011, a criminal judgment was entered against
Defendant for conspiring to commit bank fraud and aiding and
abetting. (Doc. No. 112). Defendant was sentenced to five
years of probation, with the first eight months to be served
on house arrest. The Court also ordered restitution in the
amount of $347, 173.53, with monthly payments of $50 to
commence immediately. Defendant's probation was
terminated early on February 23, 2016, and following release
from probation, she failed to make timely restitution
payments. The current total due and owing is $316, 919.95.
(Doc. No. 159).
September 14, 2016, the Government applied for a Writ of
Continuing Garnishment against Defendant, seeking to garnish
Defendant's wages by twenty-five percent (25%). (Doc. No.
158). On September 15, 2016, the Court entered a Writ of
Continuing Garnishment (Doc. No. 159), which was stayed
pending “further Court determination” (Doc. No.
172). Defendant has now filed a “Response”
requesting that the Court dismiss the Government's Motion
and allow Defendant to resume making $50 monthly payments.
(Doc. No. 174). Defendant also requests a hearing on this
primary argument is that garnishing her wages by 25% would
impose a financial hardship on her. She notes that she fell
behind in making her $50 payments due to funeral and wedding
expenses. She then sets forth her monthly income of $3,
715.57 and necessary expenses of $3, 205.25, which leaves her
with $510.32 in disposable income each month. Included in
Defendant's monthly expenses are $220 for telephone
service, $156 for cable, and $368 for a car payment.
Defendant contends that garnishing her wages by 25% will
leave her with no disposable income and the inability to meet
her financial obligations. She also points out that she is
the least culpable of the three defendants in her case.
3613 of the Mandatory Victim Restitution Act of 1996
(“MVRA”) entitles the Government to collect a
restitution judgment from any assets currently owned by or
held for the benefit of a criminal debtor owing restitution.
18 U.S.C. § 3616. “The [MVRA] provides the
Government authority to enforce victim restitution orders in
the same manner that it recovers fines and by all other
available means, ” including collection methods under
the Federal Debt Collection Procedures Act
(“FDCPA”). United States v. Ekong, 518
F.3d 285, 286 (5th Cir. 2007). The government specifically is
permitted to enforce its judgments against all non-exempt
property of a defendant. 18 U.S.C. § 3613(a). Where a
court determines that the procedural requirements of the
garnishment provisions are satisfied, the court
“shall issue” the writ. 28 U.S.C. §
3205(c) (emphasis added).
it appears the government has fulfilled its statutory
obligations. Indeed, Defendant has not filed a request for
any exemptions, nor does she challenge the validity of the
Writ of Continuing Garnishment. Instead, she contends that
assessing a writ of continuing garnishment of 25% is onerous
the Court retains discretion to set and modify minimum
required periodic payments related to restitution, Defendant
has not demonstrated circumstances that would justify
dismissal of the Writ of Garnishment. The government has not
acted improperly or abusively. In fact, the Government has
attempted to find an agreeable wage garnishment percentage or
voluntary payment schedule, but Defendant has been unwilling
to enter into an alternative voluntary payment agreement with
the United States for more than $50 to $100 per month.
Defendant's claim of financial hardship contradicts her
admission that she is able to meet her reasonable living
expenses, has sufficient discretionary income to provide for
nonessential items such as cable television, and currently
has $510.32 in disposable income each month. Moreover,
whether Defendant was less culpable than her two
co-defendants is irrelevant given that she is jointly and
severally liable for the restitution amount. Accordingly,
Defendant has not met her burden of showing that a
garnishment of 25% is unwarranted. See 18 U.S.C.
addition, Defendant requests a hearing to allow her to
present evidence as to why the Court should dismiss the
Government's request for a Writ of Garnishment and allow
her to resume paying $50 per month in restitution. However,
the FDCPA limits the Court to considering specific issues at
a hearing, including: (1) determining the validity of claimed
exemptions; (2) compliance with statutory requirements for
issuance of the post-judgment collection remedy requested;
and (3) where judgment was entered by default, the validity
of the debt and judgment. 28 U.S.C. § 3202(d). Here,
Defendant has raised no such objections; therefore, she is
not entitled to a hearing. See United States v.
Picklesimer, No. 3:00CR0008, 2010 WL 2572850, at *2
(W.D. N.C. June 24, 2010).
THEREFORE, ORDERED that Defendant's request for a hearing
(Doc. No. 174) is DENIED and her objections to the
Government's application for a Writ of Garnishment and
Court's entry of the Writ of Continuing Garnishment are
FURTHER ORDERED THAT the Court's Order staying the Writ
of Continuing ...